Query regarding break in continuous period for ILR.

[Haali]

I’m asking on behalf of a close friend who is currently on a dependent visa (with the main applicant on a Health and Care visa). He entered the UK on 19th October 2019 and is now eligible for ILR. However, he has some concerns regarding his time spent outside the UK and would appreciate clarification on the following:

- In October 2020, he traveled abroad for a family wedding and returned in December 2020.
- In early 2021, his father became ill, requiring him to return to his home country from 5th February to 26th June 2021, meaning he was abroad for approximately five months.
- Since then, he has visited his family once a year, staying for around three weeks each time (in May of each year from 2022 onwards).

He’s concerned about the 180-day rule, as stated on the Home Office website: "You must have spent no more than 180 days outside the UK in any 12-month period."

He is unsure how the 12-month period is calculated and realizes that his extended stay in 2021 exceeds 180 days in a single 12-month span. However, he is aware that the Home Office provides exceptions for extenuating circumstances, such as illness.

Would you suggest that his ILR clock has been reset, and that he should consider extending his dependent visa, or could he still apply for ILR by citing exceptional circumstances?

[zimba]

The rolling calculation means no more than 180 days in any 365-day period. It is not about a specific year or any specific 12 months.

Does he fail that requirement?

[Haali]

The rolling calculation means no more than 180 days in any 365-day period. It is not about a specific year or any specific 12 months.

Does he fail that requirement?

Thank you for responding Zimba.

Does the 365-day period rolling calculation start from when he entered the UK on his current visa or you would need to look back at the last 365 days from the current date?

I guess it would work out the same either way in which case from Oct 2020 till Oct 2021 in a 365 day period, he exceeded his stay outside the UK from 180 days. Would that mean he fails the requirement?

There is a section within the case workers guidance for calculating continuous period in UK under exceptional cases that states the following :

"Absences of more than 180 days in a 12-month period before the date of application (in all categories) will mean the continuous period has been broken, unless an exemption applies. However, you may consider a grant of ILR if the applicant provides evidence to show the excessive absence was due to serious or compelling reasons.

Serious or compelling reasons will vary but can include:

• serious illness of the applicant or a close relative "

If he can provide evidence of his father's illness and eventual demise would that potentially prevent him from breaking the continuous period of residence and therefore allow him to be eligible for his ILR?

[zimba]

The rolling basis calculation means that you cannot have more than 180 days’ absences are allowed in ANY consecutive 365-day period. So in theory, if you choose any RANDOM date within the 5 year period and add 365 days to that date, that is your 12-month consecutive period and you should not have more than 180 days of absence in that period.

Any discretion is up to the UKVI, if you fail the requirement.

[Haali]

The rolling basis calculation means that you cannot have more than 180 days’ absences are allowed in ANY consecutive 365-day period. So in theory, if you choose any RANDOM date within the 5 year period and add 365 days to that date, that is your 12-month consecutive period and you should not have more than 180 days of absence in that period.

Any discretion is up to the UKVI, if you fail the requirement.

Got it. Thank you so much for your help